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PETITIONER: BIBI JAIBUNISHA

       Vs.

RESPONDENT: JAGDISH PANDIT & ORS.

DATE OF JUDGMENT:       10/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises from the judgment of the High Court Patna, made on May 23, 1996 in appeal from appellate decree No. 135 of 1982.      The admitted  facts are that the appellant had sold the suit property  by a  registered conveyance  dated  21.2.1969 with a  contemporaneous  agreement  of  reconveyance  for  a consideration of  Rs. 4,000/-.  The appellant  had filed the suit  on   April  7,   1975  for   specific  performance  of reconveyance of the property. The Courts below had dismissed the suit  on the ground that the appellant was not ready and willing to perform his part of the contract. The trial Court as well  as the  High Court  further dismissed on the ground that the  time was  the essence  of  the  contract  and  the appellant  had   not  performed   the  contract  within  the stipulated time  and,  therefore,  the  suit  is  barred  by limitation.      The question, therefore, is : whether the view taken by the trial  Court and  the High  Court that  the time  is the essence of  the contract  is correct  in law?  No doubt, the High Court  has framed  the point  in  paragraph  8  of  the judgment and  recorded the  finding that  the time  was  the essence of the contract. It is an admitted position that the plea was  not specifically  raised, though  it was stated in the written  statement that  the appellant had not performed his terms  of the contract within time. Admittedly, no issue was raised  in this  behalf. The  question,  therefore,  is: whether the  High Court  would be justified in coming to the conclusion that the time was the essence of the contract? It is now  well settled  legal position  that in  the matter of enforcement of  the agreement  or agreement of reconveyance, time is  not always  the essence  of the contract unless the agreement specifically  stipulates  and  there  are  special facts and  circumstances in  support  thereof.  It  must  be specifically pleaded  and issue  raised so  that  the  other party has a right to lead evidence. There is no express plea in in  the written  statement nor  any issue  raised in that behalf.  Consequently,  there  was  no  opportunity  to  the appellant to  aduce rebuttal  evidence that time was not the

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essence of the contract.      This Court  in Smt.  Indira Kaur  & Ors.  vs. Sheo  Lal Kapoor [(1988) 2 SCC 488] in paragraph 6 held as under.      "On the  question whether  the time      is of  the essence  of the contract      or not  we are  satisfied that  the      High Court was in error in allowing      the  respondents   to  raise   this      question in the absence of specific      pleadings or  issues raised  before      the trial  court and  when the case      of time  being the  essence of  the      contract was not put forward by the      respondent  in   the  trial  court.      Apart from the absence of pleadings      we do  not find  any basis  for the      plea  of  the  respondents  in  the      trial court. Apart from the absence      of pleadings  we don  not find  any      basis   for   the   plea   of   the      respondents that  the time  was  of      the essence of the contract."      This Court held that the plea cannot be raised, for the first time,  in the  High Court  when it  is not a matter of pleading or  issue in  that behalf.  We find  that the  same ratio applies  to the  facts in  this case. Accordingly, the finding that  the time  was the  essence of the contract and non-suiting the  appellant on  that finding  is  clearly  in error.      The next  question is : whether the appellant was ready and willing  to perform  his part  of the  contract? In that behalf, all  the Courts  have found  that the appellants was not ready  and willing  to perform  his part of the contract and an  inference has  been drawn  in support of the finding from the  non-production of  the Bank  Pass-book. It is seen that though  he has not produced the passbook, it is not the plea of  the respondent  that she had no capacity to pay the amount. She  established that she has a substantial money to pay the  amount. Under  these  circumstances,  it  would  be unlikely that  the appellant  would have failed to offer the amount  before   coming  to   the  Court  for  the  specific performance. It  is seen that the last day of the limitation under the  contract was  February 20,  1973 and the suit was filed on  April 7,  1975 within three years under Article 54 of the Schedule to the limitation Act. The courts below were wrong in coming to the conclusion that the appellant had not tendered the  amount to  the respondent.  It is seen that in the evidence  of the  plaintiff (PW-1), it is stated that he was willing  and, in  fact, he  had offered  a  sum  of  Rs. 4,500/-. On  the other  hand,  another  witness  (PW-3)  has stated that  he has  offered to pay a sum of Rs. 4,000/-. On this minor discrepancy of Rs. 500/-, the court below was not right in disbelieving the entire evidence.      The material  question is:  whether the  appellant  had capacity to  pay the money as offered. On this aspect, there is no  consideration by  either of  the courts.  Under these circumstances, the  courts below  were in  error in reaching the conclusion  that the appellant was not ready and willing to perform  her part of the contract. As held earlier, there is no  dispute on  the capacity of the appellant to pay back Rs. 4,000/-  the consideration  paid  under  the  conveyance executed in  favour of  the  respondent.  When  we  put  the question to the learned counsel for the appellant as to what amount his  client is  willing to  pay since the property is required to  be reconveyed  under the agreement, the learned

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counsel, in fairness, has stated the appellant is willing to pay a  sum of  Rs. 40,000/-  in lump  sum. We think that the offer is  very fair.  Under these circumstances, even if the learned counsel  for  the  respondent  was  not  willing  to accept, but  in our  considered view, we think that the ends of justice  and equity would require and be met by directing the appellant  to deposit a sum of Rs. 40,000/- in the trial Court  within  a  period  of  six  months  from  today.  The appellant on  so depositing,  the respondent  is directed to produce the  title deeds  before the  Court and reconvey the property. In  case the  respondent refuses  to  produce  the document  of   conveyance  executed   in  his  favour  dated 21.2.1969 as  directed earlier,  the trial Court is directed to have  the deed  of reconveyance  executed in terms of the sale deed  dated 21.2.1969.  In that event, the appellant is entitled to  the costs of the execution and also the cost of the stamp duty and registration fee of the sale deed.      The  appeal   is  accordingly   allowed.  But,  in  the circumstances, without costs.